The New International Encyclopædia/Fishing Laws

FISHING LAWS. Laws regulating the killing or taking of fish. These are divisible into two classes: those which are municipal in their character and sanction, and those which are international.

Some of the rules of municipal law governing fishing rights are fully stated in the article on game laws (q.v.). In Great Britain the right of fishing within the territorial seas and navigable streams belongs prima facie to all British subjects. If any person claims an exclusive right in such waters the burden of proof is upon him to establish that right, by royal or Parliamentary grant, or prescription. In this country the same presumption obtains in favor of public fishing in territorial seas and navigable waters, but it is the State and not the National Government which ordinarily possesses the power of granting or regulating this right.

English law divides private rights of fishery into three principal classes: (1) common of fishery, or of piscary, (2) free fishery, and (3) several fishery. The first of these is not to be confounded with a common fishery which designates the public right of all comers to take fish in public waters, but is a creature of municipal law, and is a right in the nature of a profit, to fish in particular waters in common with other persons. The second term is used in two senses. By some writers and judges it is defined as a franchise or exclusive privilege of fishing in a public river, while others make the term synonymous with several fishery. The latter, all authorities agree, designates the right which the owner of the soil beneath non-navigable waters has to fish in those waters. It is a right of property which he may grant to another while reserving to himself ownership of the soil. When so conveyed and held it is a profit à prendre. See Profit à Prendre.

A private right of fishery is held subject to the public use of navigable water as a highway and for the free passage of fish. It is also subordinate to regulations which may be prescribed by the State for the public good. Regulations of this character are now very numerous both in Great Britain and in this country. They are intended primarily to prevent the unnecessary destruction of fish and to promote fish culture. They establish close seasons during which fish of certain varieties may not be caught, they regulate the manner of catching them, they prohibit the fouling of streams and ponds, and they annex severe penalties to violations of these provisions.

International Aspect. International fishing laws are mostly regulated by convention, and the course of their development has largely depended upon the outcome of political disputes. This is especially true of the fishing laws fixed by treaty between the United States and Great Britain, and between Great Britain and France, in Newfoundland and North American waters. These played so important a part in the history of the three countries during the nineteenth century, and still present so many unsolved problems, that they demand careful consideration.

Between the United States and Great Britain the existing laws represent a working compromise, whose history runs back to 1783. In that year the Treaty of Paris, which acknowledged the independence of the United States, provided that American fishermen should continue to enjoy the right to fish in the waters of the British possessions in America, but forbade them to dry or cure fish on the coast of Newfoundland and in settled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, unless by previous agreement with the inhabitants or possessors thereof. This arrangement continued in force until 1818, although, during the negotiations preceding the Treaty of Ghent of 1814, the views of the American and British commissioners clashed so decidedly on the interpretation of fishing rights under the Treaty of Paris that the question was ignored, as otherwise the Treaty of Ghent might not have been concluded. The superior value of the British-Canadian waters had attracted a considerable number of American fishermen, who had established themselves in the most advantageous places for curing and drying fish; and the British Government, anticipating the effect of what they considered an undue advantage, held that the War of 1812 had abrogated the fishing rights fixed by the Treaty of Paris. By the Convention of London of 1818 the United States renounced for American fishermen the liberty of fishing, subject to certain exceptions, within three marine miles of any of the coasts, bays, creeks, or harbors of the British dominions in America, except the right of entering bays or harbors for purposes of shelter, and of obtaining wood and water.

During the succeeding thirty-six years different constructions were put upon these provisions, and seizures of American fishing-vessels were made for trespassing within the three-mile limit. All these difficulties were, however, removed for a time by the Treaty of Washington of 1854, better known as the Reciprocity Treaty, by which mutual restrictions as to sea fisheries, excepting shell-fish, were done away with, and each country was granted full enjoyment of the sea fishing grounds of the other. The termination of this treaty in 1866 by notice of the United States Government placed the whole question back again in the position established by the Convention of London, in which it continued until the Treaty of Washington in 1871 restored the mutual fishing privileges of the Reciprocity Treaty. In the treaty of 1871 provision was made for referring to arbitration the question of the greater value of Canadian fishing-waters, and by the Halifax Commission of 1877 an award of $5,500,000 was made in favor of the Dominion of Canada. This treaty, which went into operation in 1873, was terminated in 1885 according to notice given by the United States Government. The extent of the renunciation made by that government as expressed in the Convention of London was again thrown open to opposite interpretations, and, several American fishing-vessels having been seized, Congress in 1887 passed a retaliatory law authorizing the President, at his discretion, to close American ports to Canadian vessels and merchandise. The discretion was never exercised. In 1888 another attempt to compose these differences was made by the Chamberlain-Bayard Treaty, which was rejected by the United States Senate; but a modus vivendi pending ratification was offered by the British commissioners, and an act of the Dominion Parliament in 1890 enacted this temporary arrangement into law.

It is noteworthy that the termination of the Reciprocity Treaty of 1854 and of the Washington Treaty of 1871 was due in each case to the action of the United States Government; and likewise the proposed Chamberlain-Bayard Treaty, which was acceptable to Great Britain and Canada, was rejected because it was believed wrongly to surrender certain incontestable American rights. Apart from certain political considerations which compelled American disapproval of these treaties, there were opposite interpretations which arose some years after the Treaty of Paris of 1783, and there were also additional interpretations of treaty rights advanced by the British North American colonies, before and after confederation in 1867. As regards the Treaty of Paris, the American claim, urged by the commissioners during the negotiation of the Treaty of Ghent and on subsequent notable occasions, was that the rights guaranteed by treaty in 1783 were not new, but the continuance of proprietary rights already existing and acknowledged. Not even the restriction as to the three-mile limit, which is the especial feature of the Convention of London, is admitted by some American writers; but the terms of that convention are, nevertheless, accepted by both governments as the binding arrangement in default of a treaty superseding them. It is also contended in behalf of the United States that, by a reciprocal arrangement entered into between that country and Great Britain in 1830, and by Article XXIX. of the Treaty of Washington of 1871, American fishing-vessels are entitled to the same commercial and transportation rights as other American vessels. Further, it is claimed that the so-called ‘headland doctrine,’ which presumes to fix the three-mile limit by drawing a line from headland to headland instead of following the sinuosities of the coast, and by which American fishermen are prevented from entering Canadian bays and harbors to purchase supplies and tranship their catch, was not recognized by Great Britain but was an invention of the Canadian Government. It is contended, also, that the stipulations of the Convention of London which allow the entrance of American vessels into Canadian bays and harbors for repairs, shelter, wood and water should be deemed privileges on the ground of their humanity and ought not to be embodied in a treaty. The opposed contentions of Great Britain and Canada have been urged at various times by their commissioners in treaty negotiations, and in the writings and speeches of public men. It is claimed that the American fishing rights guaranteed by the Treaty of Paris of 1783 were abrogated by the War of 1812 and were in consequence ignored by the Treaty of Ghent; that the American renunciation of the liberty of fishing within the three-mile limit, as set forth in the Convention of London, is definite and final, that American fishing-vessels were not within the meaning of the reciprocal arrangement of 1830; that the headland doctrine, and the restriction of the right of American fishing-vessels in Canadian bays and harbors to the purposes only of obtaining shelter, repairs, wood and water, is urgently necessary to protect Canadian fisheries.

Such are the main opposing views. The North Atlantic fisheries since 1885 have been regulated by the Convention of London. Reference has already been made to the temporary arrangement offered by the British Commission pending the ratification of the proposed Chamberlain Bayard Treaty of 1888, and to the enactment of this arrangement into a Canadian law. The last attempt to settle the fisheries question was made by the Joint High Commission, which met in Washington in 1899, but subsequently adjourned indefinitely without settling the various questions proposed.

The fishing laws as between Great Britain and France in Newfoundland waters and the Gulf of Saint Lawrence were fixed by the Treaty of Utrecht of 1713, the Treaty of Paris of 1763, the Treaty of Versailles of 1783, the Treaty of Paris of 1814, and the arrangement signed at Paris in 1885. By the first of these treaties Newfoundland was ceded to Great Britain, and the French were allowed to catch fish and dry them on land on that part only of the coast which stretches from Cape Bonavista to the northern part of the island, and thence, running down by the western side, reaches as far as Point Riche. By Article V. of the Treaty of Paris of 1763, which confirmed French rights on the coast, liberty was given to fish in the Gulf of Saint Lawrence at a distance of three leagues from the coast, and on the Cape Breton coast at a distance of fifteen leagues, the islands of Saint Pierre and Miquelon being ceded to France as a shelter to her fishermen. In 1783 the Treaty of Versailles varied the French shore fishing limit, giving up the strip of coast from Cape Bonavista to Cape Saint John, but extending the western coast limit to Cape Ray. The Treaty of Paris of 1814 confirmed these rights, and the arrangement of 1885 was entered into chiefly to calm the discontent of the British colonists of the islands, who were harassed on and ejected from the French shore. Article II. of that arrangement permits the formation of establishments on that coast shore for every other industry than fisheries, and stipulates not to disturb resident British subjects between Cape Saint John and Cape Ray passing by the north.

The conditions produced by these French rights are seriously detrimental to the interests of the colony, and the Newfoundland Legislature has refused to accept the settlements which have been proposed by various conventions. The opposing claims of the colonists and the French fishermen are clearly defined. The colonists contend that French rights under the Treaty of Utrecht do not forbid them to fish between Cape Saint John and Cape Ray so long as they do not interrupt French fishing; that the fishermen have exceeded their rights in catching and canning lobsters; that colonial settlements and enterprises, other than fixed fishing establishments, are hindered and also the working of mines; and that portions of the coast on which the French renounced their rights are worthless. The fishermen contend, on the other hand, that their rights under the treaties are exclusive, and that all British fixed settlements between Cape Saint John and Cape Ray are illegal.

Of late years the colonists have grown increasingly impatient, but the urgent friendly requests of Joseph Chamberlain, the British Colonial Secretary, have induced them to postpone for a term a final settlement. Annual agreements have been made, establishing a modus vivendi, until Great Britain is in a better position finally to settle the question with France and relieve Newfoundland from the anomalous position of not exercising rights over the whole of her own soil.

Consult: Paterson, Fishery Laws (London, 1878); Kent, Commentaries on American Law; Washburne, The American Law of Real Property (Boston, 1902); New York Forest, Fish, and Game Law (Albany, 1902); Doran, Our Fishery Rights in the North Atlantic (Philadelphia, 1888). See Game Laws; Feræ Naturæ. For a discussion of international relations arising from the seal fisheries in Bering Sea, see Bering Sea Controversy.